TANG NIN MUN v. SECRETARY OF JUSTICE

CACV 13/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 13 OF 2000

(ON APPEAL FROM HCA 6428 OF 1999)

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J U D G M E N T

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Ribeiro JA (delivering the judgment of the court) :-

1. On 30 May 2000, this court allowed the defendant's appeal against the judgment of Deputy High Court Judge Zong Er Li handed down on 29 November 1999 and ordered that the Re-Amended Statement of Claim ("the pleading") be struck out and the action dismissed. We now hand down our reasons for doing so.

2. Unlike the Deputy Judge, we had the benefit of the as yet unreported House of Lords' decision in Three Rivers District Council v Governor and Company of the Bank of England (No 3), delivered on 18 May, 2000, a Lexis transcript of which was used (unfortunately without pagination) at the hearing.

The plaintiff's case

3. The defendant's striking out application was made on the grounds that the pleading disclosed no reasonable cause of action or was frivolous, vexatious and an abuse of the process. It proceeded on the assumed basis that the factual allegations contained in the pleading, save in respect of the mental state of the alleged wrongdoer (the constable mentioned below), were true. Those allegations may be summarised as follows.

4. In May 1994, the plaintiff and his wife, both hawkers, were stabbed and seriously wounded in an unprovoked attack by a neighbouring hawker, one Ho Yuk ("Ho"). The police investigation was carried out by a detective constable, described in the pleadings as DPC 11829 ("the constable"), who induced the plaintiff and his wife to sign blank sheets of paper on which the constable subsequently concocted statements falsely purporting to have been made by the complainants. Those fabricated statements wrongly stated that the attack had been preceded by a dispute between Ho and the plaintiff's wife and also significantly understated the seriousness of the injuries inflicted by Ho.

5. On the basis of such statements, Ho was charged with the relatively minor offences of wounding in respect of the plaintiff and with assault occasioning actual bodily harm in respect of the plaintiff's wife. Ho pleaded guilty and was fined $1,000 and subjected to a sentence of 2 months' imprisonment suspended for 12 months.

6. When he discovered that the course of justice had been so perverted, the plaintiff suffered mental distress and developed a psychiatric condition of clinical depression involving mental disability assessed at about 30% and consequential loss of earning capacity assessed at about 40%.

7. The plaintiff alleged that the constable's conduct constituted the tort of misfeasance in public office for which the government, through the Commissioner of Police, was vicariously liable and claimed damages in respect of the psychiatric and pecuniary injury suffered in consequence.

The defendant's application

8. Mr Simon Westbrook, appearing for the defendant, put his case for striking out on two bases. His first ground (as eventually refined in argument) was that the plaintiff's pleaded case had to fail because it provided no basis for establishing the requisite mental state on the part of the defendant to constitute misfeasance in public office. We shall call this "the mental element" ground.

9. Secondly, he argued that the constable enjoyed an absolute immunity against being sued in such actions as a matter of public policy ("the immunity ground").

The required mental element

10. In the Three Rivers decision, the House of Lords clarified the constituent elements of the tort of misfeasance in public office. Of particular importance to the present appeal, that decision illuminates the state of mind that must be established on the part of the public officer allegedly liable.

11. As Lord Steyn put it, the choice for the House of Lords was between the subjective test requiring knowledge on the part of the officer that his decision or act would probably damage the plaintiff and the objective test of reasonable foreseeability of such harm.

12. Their Lordships unanimously chose the former option. They decided that the test was a subjective one, with any of three variants (or as Lord Millett approached it, perhaps two variants) of the requisite mental state being sufficient to found liability. Lord Hobhouse's convenient labels for these variants were "targeted malice", "untargeted malice" and "reckless untargeted malice" respectively.

13. "Targeted malice" involves conduct by the official "specifically intended to injure a person or persons" (per Lord Steyn); or done "intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable" (per Lord Hobhouse); or "with intent to harm the plaintiff or a class of which the plaintiff is a member" (per Lord Millett).

14. "Untargeted malice" involves action by the official "in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals" (per Lord Steyn); or when he "actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does" (per Lord Hutton). Lord Hobhouse explained this mental state as follows :-

"Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences."

To Lord Millett, the first two limbs of "targeted and "untargeted" malice were "merely different ways in which the necessary element of intention is established." He saw the first limb as established by evidence and the second by inference, explaining this approach as follows :-

"The rationale of the second limb is not so transparent. The element of knowledge which it involves is, in my opinion, a means of establishing the necessary intention, not a substitute for it. But intention does not have to be proved by positive evidence. It can be inferred. Proof that the official concerned knew that he had no power to act as he did and that his conduct would injure the plaintiff is only the first step in establishing the tort. But it may and will usually be enough for the necessary intention, and therefore of the requisite state of mind, to be inferred. ...... If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer loss."

Lord Millett stressed that the inference of malice "cannot be drawn unless the official did foresee the consequences. It is not enough that he ought to have foreseen them if he did not do so in fact."

15. What Lord Hobhouse called "reckless untargeted malice" was also accepted as a sufficient mental state to found liability. Lord Steyn approved the approach that had been taken by Clarke J and the Court of Appeal below, as follows :-

"Clarke J lucidly explained the reason for the inclusion of recklessness [1996] 3 All ER 558, 581:

'The reason why recklessness was regarded as sufficient by all members of the High Court in Mengel is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power otherwise than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of power.'

The Court of Appeal accepted the correctness of this statement of principle: [2000] 2 WLR 15, 61G-62A. This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form."

It is therefore established that "subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient" (per Lord Steyn). This is a state of mind involving "recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not" (per Lord Steyn); or "reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce" (per Lord Hutton, citing Brennan J in Northern Territory of Australia v Mengel (1995) 69 ALJR 527 at 546); or " ...... 'a conscious disregard for the interests of those who will be affected by' the exercise of the power" (per Lord Millett, citing Blanchard J in Garrett v Attorney-General [1997] 2 NZLR 332 at 349).

16. As Lord Steyn's speech makes clear, the plaintiff must come within the ambit of the offending public officer's intent, knowledge or recklessness in two ways. First, the officer must have acted "in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member". Secondly, the officer's intent or knowledge "must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs."

The mental element ground in the defendant's application

17. It follows that the plaintiff's claim in the present case is only viable if he is in a position to allege and ultimately to establish that in abusing his police powers of investigation, the constable either intended to injure the plaintiff or knew that such conduct would in the ordinary course directly cause injury to the plaintiff of the type actually suffered (that is, cause him to suffer psychiatric disorder and disability) or that he was recklessly indifferent as to whether such injury would ensue.

18. The pleading (which was drawn before the House of Lords' decision was known) makes only the barest of assertions as to the constable's mental state, as follows :-

"8.(3) The unlawful act was motivated by malice and clearly constitutes misfeasance in public office.

8.(4) Alternatively, DPC 11829 acted either on the basis of malice or with knowledge of the unlawful nature of the action and the probability of injury to the Plaintiff."

Mr Andrew Allman-Brown, appearing for the plaintiff, indicated that his client was not in a position to establish "targeted malice". He also realistically accepted that the abovementioned paragraphs were not an adequate pleading of the requisite mental state since, contrary to Order 18 r 12(4), they do not disclose any facts relied on as the basis for inferring the alleged knowledge. However, he submitted that a case relying on "untargeted malice" or recklessness could be pleaded and, after a short adjournment, provided the following formulation in draft :-

"Or alternatively, [the constable acted] knowing that he had no power to fabricate the plaintiff's statement and with the knowledge that the fabrication of the statement would lead to the lesser punishment of the plaintiff's assailant which result would in turn cause harm to the plaintiff as the victim of the assault or being reckless of such a consequence or with a conscious disregard that such a consequence would occur."

Mr Allman-Brown informed the court that no further instructions were forthcoming which might permit anything substantive to be added to that draft.

19. In our view, the draft put forward does not save the pleading. An action for misfeasance in public office involves the allegation that a public officer acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the officer's unlawful conduct. These are grave allegations that, in fairness to defendants, must be supported by pleaded facts which, if proved at trial, are capable of establishing liability.

20. In the present case, there is quite plainly no realistic prospect of the plaintiff establishing that the constable was subjectively aware that his fabrication of the evidence would, in the ordinary course of events, lead to the plaintiff suffering psychiatric disorders of the type of which he complains. We do not therefore consider that the action should be allowed to continue.

21. We would however wish to add that we have considerable sympathy for the sense of grievance that the plaintiff undoubtedly feels as a result of the apparent perversion of the course of justice by the constable in question. We were told that disciplinary action could not be taken against him as he had left the police force not long after the events complained of and that, in consequence of advice said to have been received from the Department of Justice, no prosecution was mounted. The plaintiff's case is however for damages for psychiatric injury and pecuniary loss resulting from the tort of misfeasance in public office. That case is not sustainable.

The immunity ground

22. Having reached our decision on the mental element ground, we did not consider it necessary or, on the state of the authorities, desirable to determine whether the action should also be struck out on the immunity ground.

23. Mr Westbrook prayed in aid cases including Silcott v Commissioner of Police for the Metropolis [1996] 8 Admin L R 633. Although that case may be regarded as strong authority in favour of his argument, it is our view that the precise boundaries and scope of the immunity are still subject to debate, as indicated in some of the speeches in Taylor v Director of the Serious Fraud Office [1999] AC 177. Thus, Lord Lloyd of Berwick (at p 203) stated in relation to the immunity :-

"I am not persuaded that it is obvious or necessary to extend the principle to those who are not witnesses or potential witnesses at all, but whose only function is to investigate and prosecute crime, such as the Serious Fraud Office, the Crown Prosecution Service and the police."

His Lordship (at p 204) posed what he saw as outstanding questions about the nature and scope of the immunity, including the following :-

"If the immunity is absolute, how is it to be reconciled with proceedings against the police for malicious prosecution? If there is to be an exception for malice, is this not more consistent with qualified privilege rather than absolute privilege? It is said that qualified privilege is insufficient protection for the reasons stated by Fry LJ in Munster v Lamb (1883) 11 QBD 588, 607. But the same could be said of every case in which the law allows qualified but not absolute privilege.

It is said that the absolute privilege or immunity will not apply unless what is said or done is 'fairly part' of the investigation process. But the absolute privilege of the judge and advocate are not subject to that qualification. The privilege applies even though what is said is gratuitous and irrelevant to every issue in the trial: Munster v Lamb. Does this mean that there is now to be an intermediate level of privilege lying somewhere between absolute privilege on the one hand and qualified privilege on the other?"

24. As Lord Hoffmann pointed out, "the core of the principle of immunity from suit is not in doubt" (at p 207). The question which he identified (at p 208) was "whether the immunity extends more generally to statements made to or by investigators for the purposes of a criminal investigation." He held that its protection enabled investigators "to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings." However, Lord Hoffmann excluded from such protection statements "wholly extraneous to the investigation - irrelevant and gratuitous libels ......" (at p 215). He drew an important distinction as follows :-

"As the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action. ...... the immunity does not apply to actions for malicious prosecution where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff. It does not matter that an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court: see Roy v Prior [1971] AC 470."

It is in this area that Lord Hoffmann saw room for debate as to where precisely the lines have to be drawn :-

"Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it. In between, there is some disputed ground. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 Drake J held that it precluded reliance on the statement in an action for negligence in which it was alleged that a carelessly prepared post mortem report had led to the plaintiff being unjustifiably arrested and charged with murder. I express no view on this case, which I think might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. There is also some dispute over whether it applies to the emergent tort of abuse of public office. In Silcott v Commissioner of Police of the Metropolis (1996) 8 Admin LR 633 and again in Docker v Chief Constable of West Midlands Police, The Times, 29 April 1998; Court of Appeal (Civil Division) Transcript No 472 of 1998, the Court of Appeal decided that it did while in Bennett v Commissioner of Police for the Metropolis (1997) 10 Admin LR 245 Sir Richard Scott V-C decided that it did not. The point has not been argued before your Lordships and I therefore likewise express no view."

25. The same possible distinction between causes of action based on statements taken or used in proceedings on the one hand and those based on other wrongful conduct on the other was drawn by Lord Hope of Craighead (at p 219) as follows :-

"Just as proceedings for perjury are available to deal with the witness who would otherwise be protected against statements made in the witness box, so also the public interest requires that a remedy for malicious prosecution should remain available against those who would be entitled to the benefit of the absolute privilege but who have acted maliciously and without reasonable and probable cause during the investigation process. But that is a quite separate matter as it is the malicious abuse of process, not the making of the statement, which provides the cause of action."

26. In our view, the questions concerning the scope of the immunity left open in the Taylor case could well be relevant to the present case. We therefore indicated to Mr Westbrook that we did not consider the immunity ground appropriate for a striking out application. Consequently, the point was not argued as Mr Westbrook did not pursue it for the purposes of this appeal. Accordingly, we presently make no ruling on the applicability or otherwise of the immunity to this action and simply strike out the pleading and the action on the mental element ground.